*1 548 v. RHEEM MANUFACTURING
Renate HAPNEY
COMPANY 771 99-732 Court of Arkansas Supreme 8, 2000 delivered Opinion June denied in part for rehearing granted part [Petition 14, 2000.* ] September * Thornton, See Ark. 11, and concur Corbin dissent part. JJ., *2 III, P.L.L.C., William for Fields, & by: Kropp Sexton J. appellant. Harris, PLC, for
Warner,
Harris,
&
appellee.
Smith
by: Wayne
L.
Renate Hapney
Appellant
Corbin,
Ju
s s
e e .. Arkansas Workers’
tic
tic
Compen
Donald appeals
for a
her claim for benefits
ruptured
sation Commission denying
from her
Rheem
cervical disc
Appellee
Manufacturing
employer,
had failed to
The Commission found
Mrs. Hapney
Company.
that she suffered a
meet her burden
compensable injury.
proof
*3
affirmed the Commission’s deci
The Arkansas Court of Appeals
vote,
Co.,
8,
sion,
a tie
v.Rheem
67 Ark.
992
App.
Mfg.
by
Hapney
Mrs.
for review
151
We
(1999).
Hapney’s petition
S.W.2d
granted
to Ark.
Ct. R.
When we
l-2(e)(i).
of that decision pursuant
Sup.
we
the court of
review
review
a decision
grant
by
appeals,
following
it
been
filed with this court. White
the case as
though
originally
474,
Ark.
6
98 (1999).
v.
339
Corp.,
Georgia-Pacific
Review
Standard of
claims for
workers’
we
appeals involving
compensation,
the
view the evidence in a
most favorable to
Commission’s
light
if it
and affirm the decision
is
substantial
decision
by
supported
Id.;
Pickett,
515,
v.
Ark.
Facts reflects that record Mrs. has been Hapney employed Rheem since where she worked as a primarily press operator. 2, 1996, On Mrs. was transferred Friday, February to an Hapney line and new duties that her assembly given job to attach required two metal to air units. these duties plates conditioning Specifically, an orr consisted of to line the screw holes and then using up using screw six screws in each unit. In order to gun her complete task, stated Mrs. that she had to bend assigned down six Hapney times and turn her heck a little when to each attaching plates unit. Mrs. worked a nine-hour shift on that Hapney day assembled a calculations, total 316 units. to her Mrs. According 1,800 bent would have down over times that Hapney day. Mrs. testified that while duties, her Hapney performing job hurt, her neck and arm but that right began she was able to her shift. complete Mrs. According Hapney, pain progres- worsened, and she sively was unable eventually to move her head. also She reported numbness in her experiencing arm. Mrs. right Carson, to Dr. doctor, Hapney reported Rheem’s on company 5, 1996: Dr. Monday Carson her February on or put restriction work, but then took light her off work on completely 13. February Mrs. remained off work until 1996. September was referred to the Holt Krock Clinic on Febru- 15 where she was examined ary Dr. William Sherrill. Dr. Sher- *4 rill ordered 29, a cervical MRI on March and it revealed disc herniation at and C5-6 some at C6-7 protrusion resulting spinal Thereafter, stenosis. Dr. Sherrill for Mrs. arranged to see a Hapney Dr. Luis Cesar. Dr. neurosurgeon, Cesar recommended that Mrs. an anterior cervical Hapney undergo fusion at C5-6. In a letter 11, 1996, dated October Dr. Cesar that to the best of his reported cause of knowledge Mrs. major was the Hapney’s problem This February refuted Dr. injury. opinion Cesar’s earlier opinion that Mrs. Hapney’s have been related disability may to a previous shoulder sustained on injury 1993. April Mrs. admitted that she Hapney had suffered an previously which injury resulted in April shoulder and that surgery, she had neck on experienced occasion ever pain since. She further stated, however, that the she on pain began experiencing February 2 was different and more severe than she had any pain previ- Moreover, none of Mrs. medical Hapney’s
ously experienced. indicate that she suffered from records from 1993 injury any with her cervical spine. problems held before an administrative law
A was judge hearing (ALJ) on 1996. In a October January opinion, ALJ found that her neck Mrs. that was proven Hapney injury under the for both gradual-onset exception compensable rapid back as codified at Ark. motion and injuries injuries, repetitive Ann. or Rheem 102(4)(A)(ii)(a) (b) 1999).1 Code —9— (Supp. decision to the Commission. appealed ALJ’s record, After a de novo review of the entire conducting that Commission concluded Mrs. had failed to Hapney prove she sustained a because the injury gradual-onset compensable does not extend to for back injuries exception found, however, cervical The Commission that the spine. rapid motion is to cervical but repetitive exception applicable injuries, determined that Mrs. failed to meet her burden ultimately Hapney under this the Commission proof exception. Specifically, opined that while Mrs. was her movements required Hapney perform minutes, 1.89 this was not a rate every sufficiently high speed the Commission found that satisfy Finally, rapid requirement. Mrs. had also failed to that she sustained a prove Hapney incident identifiable time and Mrs. now injury, place. this order. appeals to Cervical
*5 Injury Spine For her first on that the point appeal, argues Commission erred in that the determining gradual-onset exception as set forth section 11-9-102(4) (ii) does (A) (b) not she suffered to her cervical Under this apply means: injury” provision, “compensable (ii) An internal or external injury causing harm to physical out of and in the course of body arising if it is employment not caused incident or is not identifiable time by specific occurrence, if the is: statute was codified at Ark. Code Ann. § [1] At the time this case was before ll-9-102(5)(A) Commission and (Repl. 1966). court of appeals, this which is not caused incident
(b)
by specific
A back
or which is not identifiable
time and
of occurrence
[.]
is not
The term “back
defined. Mrs.
that it
argues
injury”
limit the
back as
would be absurd to
found in the
meaning
the lower
of the
On the
only
statutory provision
hand,
that if the
Rheem
intended
argues
legislature
to be
under
such as
this
injuries
Hapney’s
compensable
excep-
tion,
have made reference to
then
would
they
spine
or would have included a
for neck
the statute.
provision
The issue before us is one of
construction. We
statutory
that the term “back
as stated in
note at the outset
section
injury”
is
and
us to resort to the
ll-9-102(4)(A)(ii)(b)
ambiguous
requires
tools of
construction. A
rule of
con
cardinal
statutory
statutory
struction is to
effect to the intent of the
FordMotor
give
legislature.
Ellison,
357,
v.
334 Ark.
Credit Co.
974 S.W.2d
Citizens
(1998);
Priest,
257,
to Establish a
v.
325 Ark.
examine
as well as conditions
statutory history
contemporaneous
enactment,
with the time
consequences
interpretation,
court’s,
and all other matters of common
within this
knowledge
Commission’s,
in this case the
Lawhon Farm Servs. v.
jurisdiction.
Brown,
272,
Priest,
335 Ark.
This court
its
construe workers’
recognizes
duty
stricdy
statutes
to Ark. Code Ann.
11—9—
compensation
pursuant
Servs.,
See Lawhon
704(c)(3)
Farm
335 Ark.
(Repl.
1.
construction
Strict
means narrow construction and
be taken as intended that is not
requires
nothing
clearly
State,
Id.,
Thomasv.
315 Ark.
Critical has the Commission 1999), 11-9-519 Code Ann. (Supp. Ark. to the Evaluation Medical Association’s Guides the American adopted in the assessment ed. to be used 1993) (4th Permanent Impairment reveals that A review of the Guides of anatomical impairments. set of there is no guidelines assessingimpairments, Instead, in the addresses such the Guides impairments injuries. the musculoskeletal system, of the In describing context spine. the lower extremity, states that the extremity, Guides upper considered a unit of whole are each to be and the pelvis spine, that the consists on to state normally The Guidesgoes person. vertebrae, The cervical has seven vertebrae. region of twenty-four vertebrae, C7; twelve T1 the thoracic has Cl region through vertebrae, T12; LI lumbar has five and the region through through this case that by arguing L5. While distinguish Appellee attempts units under common “back” are two different the “neck” and that the Commission is an the fact such argument ignores parlance, common but in terms of parlance, not consider impairments The enumerated in the Guides. Guides rather based on the factors in terms of neck and back but does not treat injuries, impairments that while to the It is to note rather as injuries important the medical referred to her in terms of neck Mrs. pain pain, Hapney in terms of evidence submitted in this case diagnosed cervical not her neck.2 to her spine, dictionaries further A review of both medical general “back,” “neck” are that the terms commonly reveals “spine,” 99 (3d Webster’sNew WorldDictionary College used interchangeably. Ed. defines back relevant as: 1988) part front; in humans and 1. the of the body opposite part animals, from the to the rear or part top reaching many the neck to the end of the spine. nape 2. the backbone or spine. “that a human or animal is defined as joining
“Neck” part backbone between the of the head body, including part is defined as and the shoulders.” Id. at 906. skull Finally, “spine” column; Id. “the backbone.” at 1292. Sloane-Dorland spinal defines “back” as “the 74 (1987) Annotated Medical-LegalDictionary herniation at C5-6 and some As previously pointed protrusion out, an MR.I revealed that Mrs. at C6-7 resulting spinal stenosis. suffered from disc neck to the called also trunk from the pelvis; posterior these definitions and vertebra.” Clearly, See also dorsum. spine; of the body begin- that the back region indicate encompasses neck. at the ning *7 has addressed a similar at least one jurisdiction
Finally, Indus., 852 1993), v. Thomas (Ky.App. In issue. Newberg a workers’ in of reviewing compensa the Court Appeals, Kentucky claim, are of the worker’s the cervical vertebrae held that part tion There, here, that there was made was a as argument back. distinction between “back” and “neck.” The and common popular out that the this legislature court argument, pointing rejected Guides, that the back be divided the which states into may adopted cervical, dorsal, and lumbar Id. the at regions. three regions: noted to its the court that the Guides 341. In a footnote opinion, revised, but concluded that such revision did not had been change the court’s of analysis compensability. we that
Based on the cannot fair-minded say foregoing, the reach the same conclusion as Commission that would persons does not the gradual-onset exception encompass Thus, the cervical we reverse remand this to determine whether Mrs. matter to the Commission has with to the other met her burden of elements of regard proof set forth section 11-9-102. reached this Having compensability conclusion, the we need not address on remaining points appeal. Reversed and remanded. dissent. JJ., Brown,
Glaze The dissenting. majority opinion Glaze, Jus e,e, be an ti ti c c decision in may equitable awarding TOM so, benefits to but in it utilizes a Renate rather odd Hapney, doing “back,” and definition of the term as that term is interpretation in Ark. Code Ann. ll-9-102(5)(A)(ii)(b) employed (Supp. § statute, Under a worker a the workers’ sustains com- compensation a if the is back which is not caused a injury pensable or which is not identifiable time and incident of occurrence. case, it is
In the that sustained a present undisputed neck and but the in issue cervical statute makes no injury, Nonetheless, mention of a neck injury. majority opinion says “back” includes a neck even in common word injury, though of the “back” is defined as the medical posterior aspect parlance trunk, Medical above buttocks. PDR belowneck and See Dictionary, defined in the Sloane “back” is 1st Edition Similarly, as (1987) Dorland Annotated Medical-LegalDictionary posterior See also Stedman’s the trunk from the neck to the of pelvis. part trunk, 26th Edition (1995) aspect MedicalDictionary, (posterior neck and above buttocks). considering meaning below its term “back” as ll-9-102(5)(A)(ii)(b), employed § of the definition includes aspect part posterior accepted neck, of this case and this court’s on review is to trunk below duty Inc., Int’l, See, Nelson v. Timberline that meaning. e.g., accept 357 (1998). Ark. needless injects ambiguity reading majority opinion — the term a word that is not
of the statute by discussing “spine” and back are a found in the statute. neck Clearly, person’s but that has to do with this court’s spine, nothing duty fairly If the the term “back” used -9-102 (A)(ii)(b). interpret *8 had intended to include neck it could General injuries, Assembly The further confuses matters have done so. majority by easily citing case, Indus., a v. Thomas Kentucky Newberg (Ky. There, the Court of 1993). Kentucky construing App. Appeals, a concluded “back” shall include cervical statute Kentucky liberally, law a Arkansas different added.) spine injuries.1 (Emphasis requires standard of review than since Ark. Code Ann. 11-9- Kentucky’s, § Commission, that administrative law the 704(c)(3) judges, provides and shall the of our court construe work any reviewing provisions ers’ Gen added.) compensation provisions strictly.(Emphasis definition, in eral further Ark. Code Ann. 11—9— Assembly gave § construction, to what is meant strict 1996), by stating (Repl. condition, “if such as . . . the extent to which things any physical or should be excluded from or added to disease injury, coverage by law, the or the of the workers’ statutes need to scope compensation liberalized, broadened, narrowed, be or those shall be things addressed and should not be done an General by Assembly by Commission, administrative law the Workers’ judge, Compensation 1 The case in relied on the American Medical Association’s Guides to Kentucky the Evaluation of which is used to evaluate workers’ Permanent disabilities. Impairment, Guidesy Under is considered to evaluation, be approach impairment a cervical, thoracic, unit of the whole and includes lumbar equivalent person regions. regions While the entire be into three for evaluation-of- spine may separated guidelines gradual an such do not establish for a impairment purposes, liability employer injury onset to a worker’s back or neck. case, In the instant the General or the courts.” Assembly provided back, for benefits for onset but omitted gradual law, mention of such benefits for to the neck. As I read the has reserved to itself the the General to either Assembly authority add under the exclude or Workers’ coverage Law. Compensation reiterate, the To court decision Kentucky Newberg claim for reviewed an benefits employee’s by liberally construing that state’sworkers’ statutes. our While state Work- compensation Law, ers’ entitled prior Compensation employee-claimants construction, to a liberal broad and that rule of construction the General enactment with of Act changed 796 of Assembly’s 1993, as is evidenced and 11-9- by reading ll-9-704(c) §§ sum, 1001 discussed above. the Commission was not wrong neck, claim for a Ms. onset to her denying Hapney’s gradual injury because such an is not for under Arkan- specificallyprovided sas’s defines statute that accidental compensable injury.
While I believe the 1993 workers’ compensation provision, § 11-9-102, must be read to exclude a neck injury, interpretation does not to file a necessarily preclude employee’s ability legal action in court for on account of the SeeArk. damages Code injury. Moreover, Ann. it ll-9-105(b)(l) to me (Repl. appears that, the restrictive nature which the considering General by has now defined a it be Assembly that an compensable injury, may will often He in suit for employee’s remedy likely filing damages rather than a under the Workers’ seeking remedy Compensation law, Law. For under a example, prior meant compensable injury accidental out of and in the course only injury arising of employ- law, ment.2 Under an accidental exists present it is only if caused incident and is time identifiable *9 occurrence. added.) with such (Emphasis restrictive lan- Obviously, workers be able to seek and obtain guage, may only relief by filing suits for workers cannot be left without a damages. Surely remedy, at least in situations where the worker can show that his or her was caused negligently employer.
With such restrictive
to remove an inde-
provisions designed
terminable number of
from
under the
Workers’
coverage
Law, the General
seems to
Compensation
from
Assembly
depart
2 Injury
arising
also included
diseases and infections
out
of an
occupational
course of
(Repl.
See Ark. Stat. Ann.
81-1302
employment.
the law’s
which was to
the common law
change
by shifting
purpose
the burden of all work-related
from individual
employers
See
v.
&
consuming
employees
public.
Vanderpool Fidelity
Co.,
Cas. Inc.
327 Ark.
BROWN, this dissent. CROCKETT, Crockett, Carl Monica and Michael Crockett v. Home,
Stewart ESSEX and Funeral Inc. Turpin 00-136 Court of Arkansas
Supreme delivered Opinion June